Patten v. Mi-Cal-Co, Inc.

Per Curiam. Defendants appeal from order entered March 10, 1966, which denied their motion for summary judgment and which granted partial summary judgment to plaintiff, and from [498] the judgment entered thereon March 11, 1966, and which order and judgment severed and left for trial the issue of repudiation of the express agreement and damages. Plaintiff cross-appeals from so much of said order and judgment as denied his cross motion for full summary judgment or, in the alternative, for summary judgment in plaintiff’s favor and the direction of a hearing with respect to an assessment of damages. By virtue of the letter of January 28,1964, and the conference between the plaintiff and one of the individual defendants which occurred on or about August 12, 1964, there being no dispute as to what transpired on that occasion, and the letters of September 6, 1964, and September 14, 1964, exchanged between the parties, a triable issue exists as to breach and repudiation of the agreement. Plaintiff alleges in his complaint, though this is denied by the answer, that in disregard of his rights under his contract of employment, certain portions of the corporate defendant’s business operations were transferred to another corporation in which plaintiff would have no interest. If this assertion be proved correct not only was the contract breached but the value of the stock promised to be issued was certainly diminished. To that extent the promised compensation would be reduced. It appears also that, contrary to defendants’ assertion, plaintiff’s services were not fully rendered at the time of the January 28 letter, but extended further into 1964. ‘ ‘ It is well settled by authority that the plaintiff had the right of election, on the breach of the original contract by the owner or on the breach of the contract as modified to maintain an action on the contract for the work performed and the material furnished and for his damages flowing from the failure of the owner to permit him to complete the contract or, as he did in this case, to abandon any claim on or under the contract and sue on quantum meruit for the work, labor and services performed and material furnished [cases cited]. It is likewise the settled rule that where an express contract has been fully performed the contractor may elect to sue either on the express contract or on quantim meruit on the contract implied by law and that in such case the provisions of the contract govern with respect to the amount of the recovery.” (Raile v. Peerless Amer. Prods. Co., 192 App. Div. 506, 508; cf. Matter of Tillman, 259 N. Y. 133; Zadek v. Olds, Wortman & King, 166 App. Div. 60; Milage v. Woodward, 186 N. Y. 252; 10 N. Y. Jur., Contracts, § 392 et seq.; Restatement, Contracts, §§ 313-317, 347, comment c.) Nor do we read La Rose v. Backer (11 A D 2d 314, 320, affd. 11 N Y 2d 760) as impelling a contrary conclusion. The deter [499] mination in that case was made after a trial. In substance it held, in the absence of proof that a contract was breached, abandoned or rescinded, recovery in quantum meruit would not be allowed, and the contract price was binding on the parties. The court was careful to observe " If, in fact, it had been proven on the trial that the contract had indeed been abrogated and a finding so made, then the Referee would have been fully justified in proceeding with proof as to the reasonable value of the services rendered and making an award commensurate therewith upon such evidence, pursuant to the pleadings.” In the case before us the issue of breach or repudiation is reserved for trial. The order and judgment appealed from should be affirmed, without costs or disbursements to either party.